Other law-themed artworks

First sitting of the High Court of Australia, Banco Court, Melbourne, 6 October 1903

1996–97

oil on canvas

Collection of the High Court of Australia

The two large paintings which face each other on the landing outside Court 3 of the High Court building in Canberra represent two significant events in the life of the High Court. Marcus Beilby's painting represents the first sitting of the Court in Melbourne on 6 October 1903. Robert Hannaford's painting is of a full court sitting in Canberra on 29 April 2003. The Court first sat in 1903 despite being established in 1901 by s 71 of the Commonwealth Constitution, because legislation was needed for the running of the Court. This was achieved with the proclamation of the Judiciary Act 1903 (Cth) and the High Court Procedure Act 1903 (Cth).

The first Justices appointed to the Court were:

The Chief Justice, the Rt Hon Sir Samuel Walker Griffith who at the time of his appointment was Chief Justice of Queensland and a former Premier of Queensland. He had been a prominent federation figure and was widely acclaimed as a brilliant jurist.

The Rt Hon Sir Edmund Barton, who was Australia’s first Prime Minister and Minister for External Affairs. He had also been a leader in the federation movement during the 1890s.

The Rt Hon Richard Edward O’Connor, who was a foundation member of the Senate and Vice President of the Federal Executive Council. He had also had been closely involved in the federation movement, including as a delegate to the federation Convention 1897–98.

In 1903 Canberra as the national capital did not exist. The legislative and administrative capital of the Commonwealth was Melbourne and so Melbourne hosted the first sitting of Australia’s highest court. At a meeting of the Federal Executive Council on 5 October 1903, the Governor-General, Lord Tennyson, signed the commissions appointing Chief Justice Griffith and Justices Barton and O’Connor to the Court.

The following day, in the Banco Court of the Supreme Court of Victoria, the first sitting of the High Court took place. In a solemn ceremony watched by a courtroom filled with distinguished guests, the Justices’ commissions were read, the judicial oaths administered and the Commonwealth Attorney-General, Senator JG Drake, presented his commission to the newly-sworn Court.

This painting depicts the Rt Hon Justice O’Connor taking the oath of office. Standing immediately before the Bench and administering the oath is the Registrar, Mr GH Castle and to his left is the Marshal, Mr W.D. Bingle. In the bottom left-hand corner is the Court Crier. At the Bar table (from the bottom of the picture) are: Senator Drake; New South Wales, Attorney-General Mr BR Wise; Mr (later Sir) Isaac Isaacs KC MP; Sir John Quick KC MP; Mr LE Groom MP (representing the Queensland Bar in the absence of the Queensland Attorney-General); and Senator Dobson (representing the Tasmanian Bar). Seated to the left of Senator Drake, and not shown in the painting, were: the Attorney-General of Victoria, Mr JM Davies MP; Mr Higgins KC MP and Mr Purves KC. Due to the tyranny of distance, there was no representative from Western Australia at the ceremony. On the upper right hand side, just to the right of the clock, one can see Lord Tennyson and to his left, Lady Tennyson. To the right of the Governor-General is the Prime Minister, the Hon Alfred Deakin MP. Following the swearing-in ceremonies, each of the senior legal representatives gave [speeches] congratulating their honours on their appointment.

The first to speak was Senator Drake and it was an eloquent speech. According to a newspaper report in The Age on Wednesday, 7 October 1903:

[H]e said the country was to be congratulated on the establishment of a court which embodied the judicial power of the Commonwealth and would be the guardian and interpreter of the Constitution. With the Legislature, the Executive and the High Court, the Constitution in its great ideals was now complete. Time would evolve the union of heart and mind and purpose which made for true federation. The knowledge they had of the part that had been taken by their Honours in the past in guiding the aspirations of the people of Australia in the directions of the nobler conceptions of national life, the great care skill and pairs that had been devoted by them to framing the instrument of federation, were assurances that the court would zealously safeguard the Constitution and that the interpretation of its provisions would harmonise with the growth and development of national life. The decisions of the Court would bring life and spirit into the dry bones of the Constitution and the names of the first Justices of the Court would live in history with those of the illustrious expounders of American Constitutional law.

Senator Drake was followed in turn by Messrs Wise, Davies, Groom and Senator Dobson. Following the congratulatory speeches, each of the Justices responded. The Age reported:

The Chief Justice, in replying to the speeches, said… that the Court was entrusted with powers far reaching in their effect. It would be looked to for the solution to most difficult questions, to compose strifes between the States and possibly between the Commonwealth and the States. Upon its success or failure must depend to a great extend the future well being of the Commonwealth. His brother justices and he himself had before them to excite their emulation the great traditions of the British empire and the noble traditions of the Supreme Courts of the Australian States.

Justices Barton and O’Connor added their support to the Chief Justice’s words, each referring to the weighty responsibilities they now took upon themselves.

The ceremony was completed in less then 30 minutes and the Court adjourned until the next day to hear its first case, an application for special leave to appeal in the matter of D’Emden v Pedder. D’Emden v Pedder (1904) 1 CLR 91 involved an alleged breach of the Tasmanian Act (2 Edw VII No 30) which had led to the applicant, Mr D’Emden (the Deputy Postmaster-General of Tasmania and a Commonwealth employee) being fined one shilling by the Court of Petty Sessions in Hobart for failing to pay stamp duty of two pence on a receipt for his monthly salary – a decision later upheld by the Supreme Court of Tasmania and the Tasmanian Full Court. The High Court granted special leave to appeal, and the applicant succeeded. The High Court held that the Commonwealth was immune from state stamp duties, as were the states from Commonwealth imposts, under the doctrine of sovereign intergovernmental immunities, and in the absence of express Constitutional provision that government powers were fettered.

About the artist

Marcus Beilby, born 1951 in Perth, grew up in Western Australia where he continues to live and work. He is the son of author Richard Beilby (1918–89) whose publications include The Brown Land Crying (Angus & Robertson, 1975) and The Bitter Lotus (Angus & Robertson, 1978). He graduated with a Diploma of Fine Arts (painting), from Claremont Technical College in Perth, and painted and lectured in painting and printmaking until he became a full-time painter in 1989. Marcus Beilby's photo-realist style reflects his passion for representing ordinary Australians at work and play. It is characterised by closely observed detail and a strong graphic, almost photographic quality. The colours are intense and the light stark. These qualities are evident in Beilby’s painting of the first sitting of the High Court in Melbourne in 1903, which is based on one of the official photographs of the sitting. In 1993 he was commissioned by HM Queen Elizabeth II to paint the opening of the new Parliament House.